from the the-court-of-public-opinion dept

After the US shutdown of Megaupload, we noted that there were serious issues with the indictment, in that the US Attorneys seemed to make all sorts of leaps of logic to make their case, and it suggested that they had come into the case with a pre-determined idea (take the site down), and then cherry picked and distorted evidence to make the case. For example, we noted that the indictment used the lack of a search engine on Megaupload to indicate that it was a "criminal conspiracy," because it was "hiding" the infringement on the site. But that made little sense, considering that previous cases had found that having a search engine was an indication of inducement, and made a site against the law. The US government seemed to be saying that having search is inducement, but not having search makes you a conspiracy. That's crazy.

Kim Dotcom is continuing to make his case publicly, sharing a bunch of details of why he's confident that he'll win and why the US Government's case is wrong. In particular, he takes aim at the claims that he's guilty of direct infringement for uploading and sharing some songs. He claims that the government misses the fact that he uploaded songs he owned, but he never actually shared them publicly:

“A link distributed on December 3, 2006 by defendant DOTCOM links to a musical recording by U.S. recording artist ’50 Cent’. A single click on the link accesses a Megaupload.com download page that allows any Internet user to download a copy of the file from a computer server that is controlled by the Mega Conspiracy,” the indictment reads.

Dotcom told TorrentFreak that the file in question wasn’t infringing at all. He explained that he actually bought that song legally, and that he uploaded the file in private to test a new upload feature. He quickly picked a random file from his computer, which turned out to be this song.

“The link to the song was sent using the private link-email-feature of Megaupload to our CTO with the file description ‘test’. I was merely testing the new upload feature,” Dotcom said.

“The URL to this song had zero downloads. This was a ‘private link’ and it has never been published,” he added.

That raises questions about whether or not you can upload your own music for private use -- but given things like Google's Music locker and Amazon's music locker, it seems that lots of companies let you do something quite similar. That said, I would imagine the government's response is just the fact that such a system lets you offer up "private links" means that it's a form of distribution. However, it does make the government's case a little trickier.

Separately, Dotcom reveals that the large movie studios, who were the key source pushing for the indictment in the first place, were eager to work with Megaupload and the company had relationships with many of those companies. There are full emails there, including Disney offering up an alternative agreement to Mega's terms of service, and Warner Bros. asking for easier ways to upload its content (and talking about being able to share key movie content). The WB email is pretty damning:

Hello Megavideo,

My name is Joshua from the Warner Bros. Advanced Digital Services department.
I would like to know if your site can take a Media RSS feed for our syndications.
We would like to upload our content all at once instead of one video at a time.

Thank you for your time and funny content,

Joshua D. Carver

This is, certainly reminiscent of the revelation that while Viacom was freaking out over YouTube and suing, its marketing people were uploading tons of clips, and that Viacom was so confused that it actually sued YouTube over clips it had uploaded itself.

All that said, I still think that Kim Dotcom's decision to fight this in the press is a huge mistake. Even though he makes it out like he's fighting the MPAA -- and I'm sure they were absolutely behind much of this -- he's really fighting the US Attorneys, a part of the Justice Department, and they don't deal well with things like this. They can be incredibly vindictive and are focused solely on winning the case, not on what the public thinks. They'll use everything Dotcom says publicly and turn it against him.

Along those lines, for all the parallels discussed to the YouTube case, or even the Hotfile case, it's important to recognize the key difference. Those cases were civil cases between two private parties, where the end results could be injunctions or monetary awards over copyright infringement charges. Megaupload's founders are facing criminal conspiracy charges, which are an entirely different ballgame. Yes, the conspiracy charges are based on copyright infringement, but arguing solely about the copyright infringement part misses the main thrust of the government's case. The conspiracy charge is why they can do something ridiculous like claiming the lack of a search engine is evidence of a crime (even if having a search engine is evidence of inducement). Having all of this rest on the "conspiracy" charge means that the rules in this case are different, and the evidence just needs to show conspiracy -- not necessarily focus on the infringement aspects.

I think that Dotcom and his lawyers absolutely should be making these points in court to show that the conspiracy angle falls down when you scratch beneath the surface. Furthermore, they should probably be making the case that, at best, this should have involved a civil copyright lawsuit. But fighting a criminal conspiracy charge as if it's the same thing as a civil copyright infringement dispute is a mistake, and it's one that federal prosecutors will jump on and exploit strongly. Dotcom is right to point out that there's a serious conflict of interest in the fact that Neil MacBride, the former anti-piracy boss for the Business Software Alliance, is leading the case against him -- but arguing that right now isn't going to do him any favors. MacBride is a smart guy, and he'll use all of this against Dotcom.

I think there are a lot of serious issues raised by this case, and I think the government has massively overreached in its indictment. But I do worry (quite a bit) that Dotcom's decision to take his arguments to the press first may backfire and could taint the case, where having strong legal arguments to counter the government's questionable claims are really really important.

Reader Comments

Maybe that is his plan. Get his side out into the public as much as possible then demand a Jury trial. If he talks long and loud enough how can the jury selection teams find anyone who doesn't know something about the case and already formed an opinion?

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You sir have sadly made a great error in assuming that the United States population actually pays any attention to the news. It will not be hard to find a jury full of people that live with their heads buried in the sand. Of course the trouble is that the people who have not heard of this case are the people who don't know what a computer even is.

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Go ahead, everyone, ask your mom who Kim Dotcom is. The answers you'll get will range from "who?" to "is it that cartoon?" to "is that kim's website?" It will fail the mom test HORRIBLY.

Therefore, they will be able to easily find jurors who know nothing about it and worse yet (for Kim), it'll be a bunch of people who know little to nothing about the internet, computers, or really anything technological.

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It is supposed to be a Jury of your Peers. If they find someone who has his head in the sand and knows nothing about computers much less what the Internet is how is that a Peer (the fact that he is a multimillionaire and puts him in a totally different circle of "peers" notwithstanding).

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You are taking the term "peers" in a much narrower view than what the legal system thinks of "peers". His peers are just regular citizens not involved in government. If you are a computer geek they don't go out to comicon to find a jury.

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Pfft! More like a group of people who couldn't get out of jury duty...

I know, civil duty and all that, but most intelligent hard working people can rarely afford to take time off to serve on a jury and the bright ones can pretty easily show up for one day and get themselves disqualified.

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Maybe I'm just weird, but I actually want to be called for jury duty. I always thought it would give me a little insight into the justice system, not to mention a mini-vacation (If you could call it that) away from the boring paper pushing at my regular job. Mind you, I also have a company that will pay my standard salary while I'm out of the office on jury duty leave where a lot of other companies do not. I can see the economics reasoning for trying to get out of jury duty in that instance.

Mind you, I guess once I actually get to participate and have reality crush my dreams of helping to instill a bit of common sense and intelligence into the legal system, I guess I'd end up bitter and wanting to avoid the process too. =P

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However it would be interesting to see the jury selection challenged based on the definition of the word "peers". I seems reasonable to me to argue that someone without enough technical experience to comprehend the language and concepts of the case would not be able to make a fair assessment of the facts and therefore a jury of corn farmers who have never used the Internet would not constitute a jury of HIS peers.

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Further the feds have cherry picked data from MegaUpload's servers that seems to support their case, but have frozen all of Mega's assets and refused them access to their own servers so they have no way to defend themselves.

This isn't a trial, it's a lynch job. IMO they have only one objective--destroy MegaUpload to feed their own egos.

[Sarcasm]
"Don't bother us with the facts, our minds are already made up! Guilty until you prove you're innocent, but we're not going to let that happen."

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The takedown is one thing. Gaining a conviction without a jury (unless HE decides to waive his right to a jury trial) is a much more difficult thing to do. Besides if that were attempted it would make for a pretty easy appellate case to have the conviction overturned. They are much better off trying to stack the jury than deny the right to a jury altogether. They are not THAT stupid.

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How can Dotcom defend MegaUpload when the feds have blocked all access to his servers and frozen all assets so he has no money to pay for legal counsel to defend himself? Sounds like a kangaroo court to me-bounce him in, rubber stamp his conviction, bounce him out. Outcome decided in advance.

Telling the host they can clear the servers before Dotcom has a chance to find evidence to defend himself with is spoliation of evidence. If he did it it would be a felony. If the feds do it... well they're 3000 pound canaries, they can do anything they want and get by with it.

Considering the whole debacle over who was actually the CEO of the company, I tend not to believe a word that comes out of his mouth. He's a confidence man, a liar, a cheater, a convicted con artist, and a shyster - and I am only saying the nice things about him.

He can fire back all he wants, he tends to come off as both arrogant and full of shit (worse than even Marcus!)

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Your personal opinion not withstanding, what if he's right about all of the evidence he has?
Seems pretty telling that he was willing to work with the various media companies and has friendly emails atesting to that.
If indeed he can show that he was playing ball with the various media companies, I'm not sure how far his case will get.

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So far, he isn't showing much. Just like the new CEO of the company, nothing this guy does is straight. It's almost comical to watch him go at times, watching people like many of the sheeple here falling for his crap.

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If you're not with him, you are obviously against him. This AC is like a stubborn mule, no matter how much evidence against his statements you bring, he'll shout "EEYAH! EEYAH!" I mean "No, I'm always right, therefore you're wrong!"

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No, I care what evidence he might provide, but I am skeptical For many reasons.

This guy is an old style hacker, a convicted felon for crimes that are exactly in the line of being dishonest. So I can easily imagine him having taken the time to create a whole nice selection of emails that appear to be from various companies, individuals, etc, and has kept them ready for just this sort of case.

See, Kim has a big credibility issue here. He has lied to make money before, so it isn't unreasonable to think he would lie to keep his ass out of jail.

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And you pretend that the prosecution doesn't have problems with it's credibility due to it's disregard for due process, obvious conflicts of interest and proclivity for grandstanding - just read the indictment for that one.

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You still seem to be coming back to the idea though that any evidence he presents in his defense might be false, and so should be just tossed right out, which just plain isn't how things should work in the legal system.

That said, if he presents some evidence, and it's proven by a neutral third party to be fabricated, I'd totally agree it should be tossed out, but I really don't think he'd try something like that for the simple fact that it would be tantamount to suicide.

-If he doesn't present evidence of something, then that's that, neither side can work with what isn't there.

-On the other hand, if he presents evidence, and it's proven to be false, then the prosecution would have a field day with it, and be able to bring about questions on the validity off all other evidence he presents, valid or not.

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"You still seem to be coming back to the idea though that any evidence he presents in his defense might be false, and so should be just tossed right out, which just plain isn't how things should work in the legal system."

No, I am coming back to the basic legal principal of credibility and integrity. Kim has been found guilty in the past of scamming, of being dishonest, and manipulating both data and systems to make a profit. Considering he has lied in the past to get his way, what is the assurance that he isn't doing it now to get his way?

A person's background and past record is something that is always part of what should be considered.

"On the other hand, if he presents evidence, and it's proven to be false, then the prosecution would have a field day with it"

It would be up to Mr Kim (insert this weeks name here) to show that it is valid and true, for it to be truly considered. "Because I say so" or "from my computer" isn't going to hold much water in this case, because he is a known computer hacker, with the contacts and the money to falsify almost anything. He would need a neutral third party to confirm something in order for it to be truly acceptable.

Moreover, for the extradition, he doesn't have to be found guilty of anything - there only has to be a show that there is a reasonable amount of evidence (aka probable cause) for him to be sent to stand trial.

Just go look at the Assange thing in England. He doesn't have to be found guilty of rape to be sent to the other country to face justice, they only had to show that they have a case worthy of entering the court room.

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>No, I am coming back to the basic legal principal of credibility and integrity. Kim has been found guilty in the past of scamming, of being dishonest, and manipulating both data and systems to make a profit. Considering he has lied in the past to get his way, what is the assurance that he isn't doing it now to get his way?

The same thing can be said of the organisations that funded and demanded this whole debacle. What is the assurance that enough damage was done to warrant dragging him to court?

>It would be up to Mr Kim (insert this weeks name here) to show that it is valid and true, for it to be truly considered. "Because I say so" or "from my computer" isn't going to hold much water in this case, because he is a known computer hacker, with the contacts and the money to falsify almost anything.

I think it's funny how often your side wants to bring this up. Dotcom as he is right now is crippled in terms of his assets, yet somehow the prosecution wants to keep him under lock and key because he has magical assets that couldn't be found - despite having years of planning, helicopters and a SWAT team and an international-scale investigation at the prosecution's disposal. If you were really planning all this for years you wouldn't be missing this out, or filing the wrong charges.

>He would need a neutral third party to confirm something in order for it to be truly acceptable.

Yeah, like the RIAA gets neutral third parties to harvest their evidence.

Bingo

Having all of this rest on the "conspiracy" charge means that the rules in this case are different, and the evidence just needs to show conspiracy -- not necessarily focus on the infringement aspects.

That's a big fat Bingo. Conspiracy is nasty stuff. My recollection is that all the guvment needs to prove is a plan to do something illegal by 2 or more people, and one overt act in furtherance of the conspiracy. Don't even need to accomplish the illegal goal. The more Dotcom talks, the more he gives them to work with.

The money laundering and conspiracy charges are the serious ones. I remember hearing that there are a number of internal e-mails supporting those charges. The Eastern District of Va is very conservative and not particularly a haven of high tech. I'd dread a jury trial here if I was Dotcom.

Legal Conspiracy

Is it still criminal conspiracy if they conspired to do something legal? We need to know what the actual illegal act for the conspiracy charges are. Does anyone actually know what this illegal act is for a fact?

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This has echoes of the Piratebay trial, where the defendants were found guilty of aiding in copyright infringement - not guilty of copyright infringement themselves, but of aiding in it...trouble there was, the Swedish government completely ignored the fact they hadn't actually charged anyone with having directly committed copyright infringement and was aided by the TPB guys.
Basically, the TPB guys were found guilty of aiding a completely nebulous crime that no-one was actually charged with committing.

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You first have to prove that the gains came from illegal sources. Advertising isn't illegal. Access to a service that isn't illegal on it's face but COULD be used for illegal activity is a stretch. That would be like claiming that a hosting provider that charges for hosting space where it is found that some of the clients could have hosted illegal content.

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That's the problem. The US has incredible incentive to make illegal seizures of goods based on dubious means.

I've been looking at the civil asset forfeitures and how they're abused. It's not pretty.

The US only needs a preponderance of evidence standard to keep MU offline. Basically, they will only need to show to a court that the property was used in a crime. The in rem process is being abused and it's ridiculous how they have over 400 statutes of law to keep the property owner from their property.

And good luck trying to get it back. With the lowered federal standard (thank you drug war and Prohibition!) your property is effectively guilty before being proven innocent.

If I showed how civil forfeiture was being abused by each state, that could be 5 articles. But take a look at Virginia's abuses and their ranking in regards to what they make when policing for profit.

This should be talked about more. There's no mention of reforming the system any time soon and I'm sure that a lot of people have been robbed of billions through these programs without due process of law.

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What I'm saying is that the seizure is unlawful. The money laundering claim is quite a stretch and CAF laws are abused regularly for law enforcement's bullying to continue to plague the US with seizure bullying.

It's difficult to take the money laundering claim seriously when almost nothing in the case equates to an actual crime on the part of MU.

Irony...

Wait isn't the former head of a major lobbying group with interests in the outcome leading a criminal case against someone for conspiracy to commit violations in matters of civil law by definition evidence of a conspiracy in it's own right?

I think that Kim's biggest problem is he's being tried in the court of public opinion AND in actual court. If he wins his trial, but comes out looking like a dirty criminal that got off on a technicality then Megaupload will be in big trouble. hell, they're already in big trouble. who wants a filelocker that may disappear whenever the gov't wants it to?

The only way for Kim to "win" is to come out of court looking squeaky clean AND have the public on his side. So, the reason for these ill-advised comments may be looking ahead, preemptive damage control, perhaps.

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I think his goal is to publicly discredit the prosecution prior to the start of the case such that it would create public pressure to have it dropped for being a miscarriage of justice. However he could have the information leaked such that it isn't directly tied to him and therefore the prosecution cannot use it against him. As far as public opinion goes if this isn't his strategy, he could easily wait until AFTER the case is heard in court and then once it's over release all the sordid details to the public including every misstep and misdeed by the prosecution.

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I think Kim's defense is flimsy, and he is trying to stop the public from looking at what he was really charged for, and instead to concentrate on the front he built up.

The case is mostly about money laundering - charging for access to copyright material, and paying commission to other companies that he owned for sending people to the main site. It's a classic case, which he likely has no defense over.

He is trying to get you to concentrate on a small, small corner of things, and get your riled up in that one area, hoping that it will overwhelm the scope the charges against him.

It will fail, but it's funny as hell to watch this convicted shyster at work.

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Jay, please, pay attention:

Mega's business model wasn't people paying to store stuff. Storage was free. Mega was charging for ACCESS to the stored stuff, no matter who put it up there.

Their real trick was in allowing you to watch movies for 72 minutes (into the third act) and then blocking your access for a period of time so you couldn't see the end of the movie. Of course, if you bought a "special VIP" style account, you could bypass the delay and get the rest of the movie right away. There is your illegal distribution right there.

The money laundering? Well, they have schemes to pay the uploaders, schemes to pay the people sending the surfers who sign up, etc. What Kim did was set up a bunch of companies holding "fronts" for Mega, which would suck people in with the info on the movies and the "free download" or "watch now free" that would send the surfer on to Mega. Then Mega would pay Kim's companies for every surfer that converted into a sale.

That's the money laundering. The original bad act (selling access) made worse by using legit front companies to take the money outside, making the money appear to be just legally obtained revenue.

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Their real trick was in allowing you to watch movies for 72 minutes (into the third act) and then blocking your access for a period of time so you couldn't see the end of the movie. Of course, if you bought a "special VIP" style account, you could bypass the delay and get the rest of the movie right away. There is your illegal distribution right there.

By what standards are you going to condemn the site because of their features that they represented in a court of law?

By this same token, if someone puts up a legal movie on the site, that they have the rights to, then get paid for access, then how the hell is that illegal? You're confusing a service that they have with what the customers are doing.

Well, they have schemes to pay the uploaders, schemes to pay the people sending the surfers who sign up, etc. What Kim did was set up a bunch of companies holding "fronts" for Mega, which would suck people in with the info on the movies and the "free download" or "watch now free" that would send the surfer on to Mega. Then Mega would pay Kim's companies for every surfer that converted into a sale

It's really not that hard to upload material to Megaupload that people want. There's nothing illegal about that. You're all over the place with the money laundering. It's a stretched argument indicative of confusion with the laws of civil copyright infringement and criminal copyright infringement.

The original bad act (selling access) made worse by using legit front companies to take the money outside, making the money appear to be just legally obtained revenue.

Last I checked, no court of law made them illegal at all. And I would be willing to bet that criminal copyright infringement has a higher standard of proof than civil copyright infringement.

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" It's a stretched argument indicative of confusion with the laws of civil copyright infringement and criminal copyright infringement."

You don't get it, do you?

If you charge access for something that you don't have the rights to distribute, you have committed COMMERCIAL copyright infringement. If you then forward that money to third parties away from the infringing company, you are laundering the money.

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But the charges was for enhanced privileges on the account not access and was completely independent of the content that was or was not stored there and was or was not legal if there was anything stored there. Access to the account was still free. Still a stretch to prove commercial infringement.

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The standards of seizure were civil copyright seizure standards for a supposed criminal seizure. Also, through common law we find that how this argument is framed is incredibly one sided, with the government over-reaching in this case. If money laundering is as easy to find as you seem to imply, Starbucks is guilty of the same behavior for having a tip jar. Or how about the recording industry's shell game recently uncovered? By the same token, ASCAP should be investigated for their shady deals with entertainment venues. Point is, the megaupload case shows an interesting amount of troll logic and it is going to take a lot to prove that this was indeed a gang related offense that had dire consequences of economic damage.

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plus they have to extradite him first hes not playing to U.S. sentiments yet he is still working with new zealand and working the whole "are we really america's bitch angle" hopefully he gets a judge that answers that question correctly

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Kim Dotcom has to go public. If he did not, then he would be guaranteed to lose his cases. Some judge would look at the situation and think, "Hmm, Hollywood vs an unsympathetic character, I will find for Hollywood." Then Dotcom is screwed. He needs the public interest. He is not passing the "Mom test" mentioned above, at the moment. If he can create enough buzz, then he has a chance. His strategy is brilliant. However, he could do with a lawyer who is more versed in conspiracy cases.

the studios were/are aware that there is a considerable amount of money to be made from the internet, simply by giving customers what they want. there is the problem for them. they would have to admit that they have been wrong up til now with how they have handled things. Kim is about making money but wasn't ripping off customers or artists. that was an even bigger problem for the studios, leaving them with no choice but to get the site shut down by any and all means possible. false allegations have been made and law enforcement have behaved as if they are the private police force of the entertainment industries. crap is going to hit fan sooner or later. i doubt if Kim will not fight the charges and i bet he has plenty of evidence on his side. the biggest problem he has is whether the court, wherever the trial is held, is gonna be unbiased or whether the verdict has already been signed and delivered!

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The content industry has NEVER embraced technological advances before they were forced to. They have ALWAYS tried to kill off anything that didn't support their existing business model. So I doubt very seriously that they were actually trying to engage them on the level. It's more likely that they were simply feeling out the capabilities of the operation by inquiring about a cooperative business relationship only to use the information gained in their later attempts to kill the service.

As for the missteps by the police and the proscecution, here is my theory about what happened there. The DOJ doesn't build a case like this overnight. This has been coming for quite some time. However I suspect they were not quite ready to move when they did but due to the support the Whitehouse lost from Hollywood after the announcement made concerning SOPA and PIPA and then the protest, the Whitehouse likely requested the DOJ move up the schedule on the raid to mend political fences in Hollywood for the administration. So quite simply they didn't have everything all in order when the call to go came from higher up. At least that's my theory.

" I think there are a lot of serious issues raised by this case, and I think the government has massively overreached in its indictment. But I do worry (quite a bit) that Dotcom's decision to take his arguments to the press first may backfire and could taint the case, where having strong legal arguments to counter the government's questionable claims are really really important. "

While I can agree with this, there is another thing to consider. What if he actually does win ? Typically in cases like this there are mysterious 'settlements' that are sealed and no one ever finds out exactly what happened. Though trying this in the press can indeed backfire it also insures that everyone knows exactly what was done by whom before the whole incident gets 'settled' into silence. It's all out in the open BEFORE a judge makes an order preventing anyone from knowing what's REALLY going on.

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I think the sealed settlements thing usually happens more in civil cases than criminal ones and it's usually not the judge sealing the terms but rather a part of the agreement under which the plaintiff agrees to drop the case.

Because of the legal precedent by each decision, court cases in general are a matter of public record when they are decided unless there is a REALLY good reason (ie. National Security) for them not to be. I can't really see that sort of thing happening in this case.

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The government really doesn't want to set a precedent with any of their cases. It's why they're taking so long. They usually want to bleed out defendants economically so that they're more open to plea deals.

" As far as public opinion goes if this isn't his strategy, he could easily wait until AFTER the case is heard in court and then once it's over release all the sordid details to the public including every misstep and misdeed by the prosecution."

Unless, as I mentioned above, the judge seals away everything from the public, and since the government is directly involved, this seems pretty likely. It's risky, but I don't see any other way to make sure the public is properly informed. The US government ( or any other government ) can't be trusted to be open, candid and honest.

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A judge could try to seal away the records from the case but that's unlikely to happen because this is too high profile. And even if the judge did seal it away, they couldn't keep him from talking about it it to the media. If the judge seals it and he is the only one that is talking then the public will simply want to know what the government is hiding by getting the case sealed lending credibility in the public opinion to whatever he says. That's a losing proposition long term for them.

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About the only way I can see that a judge could seal evidence in this case would be a claim of "national security" by the prosecution that the judge agrees with. Or to take the proceedings into voir dire (sp) which boots out the media to protect testimony and the person who gives it.

Part of the reason criminal trials are held in public is that the barons who forced King John to sign Magna Charta didn't trust government either. Not that it stopped secret trails altogether for a few hundred years.

Not that anything I said above would lock away all of the evidence just that directly relating to something as important as "national security". I'd not be surprised to see that come up as just about everything these days seems related to that, even a traffic ticket, but even then that wouldn't result in sealing ALL the evidence.

As for the conspiracy angle any doubt Dotcom and his lawyers can sew prior to the trail beginning is useful provided they don't go overboard with it. There is the minor detail in criminal law that guilt has be be proved "beyond a reasonable doubt" and showing that they have a bit of something that does just that makes conspiracy a whole lot harder to get to that test and pass it. Doubt is clearly shown when the defendant can show that the people who complained about the allegedly infringing content on Megaupload were, in fact, uploading some of that content themselves. There story on Torrent Freak indicates other damning documentation to the US government's case itself.

I wonder how much of this is actually intended to sew doubt in the legality of the raid that took Megaupload down in New Zealand and the quality of the evidence the US Government used to act as the MPAA's bounty hunter in NZ using items presented to the court being asked to extradite him to the United States and has already been presented there.

I doubt very much that Dotcom's legal team is going to do much of anything that would endanger his case and they're keeping him on a short leash. And I suspect they're a top flight legal team both in NZ and the USA.

I don't personally care if Dotcom is a scumbag, con man or a Saint. If the United States and New Zealand were legally wrong in what they did and Dotcom's legal team can sew enough doubt during the case to make it impossible to convict then they're doing their job.

If the United States can get him out of New Zealand and if the quality of the evidence they've presented to extradite him is any indication I'd not be surprised if the rest of the case is as leaky as the extradition evidence has been.

Aside from the ethical questions surrounding a government acting as Hollwood's bounty hunter this is going to be a very interesting case for the future of the Internet, the promise of cloud computing and a raft of other things.

As for sealing evidence heard in open court, I'd say "best of luck" to any judge who tries that one or any prosecutor that even asks for it.

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As I (and others) have said, an attempt to seal the case is unlikely. Realize also they don't want just to convict him. They want to PUBLICLY CRUCIFY him as an example to scare others. They want to wield all of their might publicly. They don't want wouldn't want any of it hidden from the public view, unless of course it starts to go badly but by that point it's too late for that. They're already committed to that. If they wanted that they would have quietly arrested him one day when he went for groceries instead of using a flashy commando style raid on his home.

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Your probably pretty spot on.

What most people on TechDirt are failing to consider is that this is not anywhere near going to trial in the USA. This is all about the upcoming extradition hearing that is by no means a slam dunk for the USG.

In fact The USG has a very uphill battle on it's hands to prove to the NZ Judiciary that extradition is required and in the best interest of both the USA and NZ under the treaty, which as we all know is highly one sided.

This whole situation is getting more and more problematic for the USG as it progresses, and I do't think they took into consideration the actual animosity that the Average Kiwi (which includes politicians and judges) for the USG and it's heavy hand of being the so called "Worlds Police". Remember, USA nuclear vessels are still forbidden from NZ waters and the French aren't the only people who have publicly been found spying on NZ interests.

Wondering whether the accusation of a "conspiracy" is directed towards the right people

Im noticing a trend here, acuse the opposition of, and not limited to, what you are in fact guilty of before they get the chance to accurately accuse you.
If and when the opposition wise up, and starts airing your dirty laundry, you can turn around and question their credibility, to acuse you of something, they were recently accused of, thus spreading doubts on your oppositions honesty, and by proxy, having the accusation questioned rather then believed

they think they soooooo smart

troll dude, i know you there..........a big F U to your troll response, oh, yeah, and, have a nie day

Re:

Re: Re:

Then were' in a bit of a conundrum, seeing as the very ones who have the power to change things are the very ones that need changing, mind you, i have to have faith that there are at least a few who remember who they are suppose to serve, and the purpose in which its people agreed to place that power in their hands, otherwise we're screwed...............and i don't see any change happening, until someone starts breaking balls, of those who's balls have inflated beyond measurement, not to mention that their mentality on things has infested the public and some of its people, THAT, is another big problem

The sheriff of Gov, Inc. don't care about no steenking "Legal"

Megaupload and the likes can be as legal as pure rain. It don't matter - Mega dies because Cowboy Country's sheriff is out ta git them ('cause Holydead wants 'em dead and Holydead can't win a fair fight), and Cowboy Country's got all the weapons.

The election's a'comin' this year and Cowboy Gov. Inc. needs Hollydead's (and Wall Street's) shekels to help finance their side of the world's biggest propaganda fest, er election.

The current Cowboy Country Gov Inc. will kill anything (legal or illegal) in order to act as Holldead's private army and destroy any threat of competition to Hollydead.

It's the same reason the entire cast of recent Wall Street criminals walks free, and the same reason Cowboy Country Gov Inc. has put orders of magnitude more effort into silencing criticism of themselves (Assange, et al.) than in snuffing the former public enemy number one.

Oh, and the same reason "copyright violation" is treated as a worse crime by Cowboy Country Gov Inc. than mass murder.

And What About The MU Affiliate Program???

Okay he can beat rap for testing links and crap like that. Whatever. The real meat of this case is about the advertising and membership money that was doled out to the low-life pirates that hang out on the likes of WJunction and BlackHatWorld forums. If there's any evidence he assisted any specific people in pirating for cash, he's fucked. If he only knew that was going on in general then he might be able to knock the penalty down to something financial like how Google paid the DOJ $500 million. There's no way in my mind he's going to get out of this completely unscathed.

Re: And What About The MU Affiliate Program???

Accepting advertising money is illegal? Since when? If taking that legal money and using it to make "illegal" payments to users then how does that constitute money laundering? Seems to me that money laundering would be the exact OPPOSITE.

Re: And What About The MU Affiliate Program???

"If there's any evidence he assisted any specific people in pirating for cash, he's fucked."

If and only IF it can be shown he directly assisted those people and did it deliberately. As for accepting memberships from people I've yet to be asked by any site what forums I frequent nor would I answer the question. If it was mandatory I'd lie.

Will he get off completely? I doubt it too. But not for the reasons you state. He's already paid a price and will continue to do so found innocent or guilty.

Re: Re: And What About The MU Affiliate Program???

"If and only IF it can be shown he directly assisted those people and did it deliberately"

No, all they have to show is that (a) they were aware (and apparently the emails do that) and that (b) he helped move money to those parties who helped, including his significant collection of companies.

Their storage system is also an issue, they were making it much to easy for people to "re-upload" pirated material without having to make an effort, by comparing to stuff already uploaded. Removing a single link to a file, but not removing all links when getting a notice of copyright violation is a real issue as well, and shows intent.

Re: Re: Re: And What About The MU Affiliate Program???

In DMCA cases it is pretty common for the provider not to delete the content altogether but rather suspend public access to the account and let the user remove the content as there is a reasonably high occurrence of false claims that when disputed have to be restored so removing just the offending link is perfectly reasonable.

Re: Re: Re: Re: And What About The MU Affiliate Program???

Actually, the point is that you remove access to the content - which is NOT what they were doing. They removed access to a single entry point to the content, and not the content itself, which defeats the purpose. If you have 100 URLs that point to Avatar, and you get a notice on AVATAR, accessed by 1 of those URLs, the proper thing to do is to disable the files, and see what happens.

They just disabled a single link, which is entirely dishonest. They didn't stop the copyright violations, they knowingly assured that the file stayed active. It was common knowledge on sites like Mega that you should always "upload" the same file 10 times, so that you had 10 URLs to work with - so that even if 1 or 2 got taken down, you still had plenty of ways to send people and make money.

Re: Re: Re: Re: Re: And What About The MU Affiliate Program???

The REQUESTS only provided a single link. Nothing was ever suggested that any of the other links were illegal.

In the hosting business, if I were a provider, I have a responsibility to do my best to protect MY customer's content until I KNOW that it is not rightfully owned by that customer.

Take for instance the case of a customer of a reseller which happens ALL THE TIME. Provider A has a customer B who is a reseller with his own customer C. Customer C becomes unhappy with reseller B and refuses to pay his bill to reseller B and so reseller B suspends access to his account. Customer C decides he wants to move to a new provider but doesn't have a backup of the site so he contacts provider A requesting access to the content. Provider A has a contractual obligation to Reseller B but not to Customer C. If Customer C truly has a right to access the content he can plead his case to a court and get a court order to have the content released, until then he legally has no right to access. If Provider A deleted the content at the request of Customer C (or some other third party) Provider A would open himself up to litigation from Reseller B for breaching their contractual obligation not to mention news of such irresponsible behaviour would be highly detrimental to other business as NO ONE would want to trust that provider with their content (or their customer's content) EVER AGAIN.

Removing the link is the RESPONSIBLE thing to do. The fact that all of the links (whether infringing or not) happened to point to the same file rather than duplicates of each file is just a technical way of conserving the amount of space required as a hosting provider, nothing more.

Re: Re: Re: Re: Re: Re: And What About The MU Affiliate Program???

Actually to be more specific they didn't remove the links. They didn't create the links and had no access to the links. Any links that existed, existed on external sites that were beyond their control. Links were created by others. They BROKE the links by REMOVING THE SPECIFIC URLs to the files.

Re: Re: Re: Re: Re: And What About The MU Affiliate Program???

They just disabled a single link, which is entirely dishonest. They didn't stop the copyright violations, they knowingly assured that the file stayed active.

You (or some other AC) keep bringing this up like it's some sort of criminal act or something.

The United States is not the whole fucking world. Mega disabled the links specified in the DMCA notices as they were required per US law.

Since there are other countries besides the US (I know hard for you to imagine) with different laws then the US's where filesharing is completely legal for personal use, Mega isn't required (nor should they) disable links that are perfectly legal, even if they point to something that would be considered infringing in the States.

You are being either blissfully ignorant or willfully blind to these simple facts.

Re: Re:

There are tons of cases where people sued the government. Maybe not for monitary damages, but you can still sue the government for all kinds of other stuff like injunctions to prevent actions from being taken, reversing unjust laws and court decisions, etc.

Re:

One has to remember he is making his case in NZ.
If he can discredit the "evidence" used by the former muckity muck from BSA to get the ham sandwich indictment ignored on just a few points, NZ will not extradite him.

NZ will not suffer being being made to look like morons. The over the top antiterroist raid on his home was the first of many high profile screwups. The claims of millions stashed away and him slipping across the border to escape, when on 3 attempts they found all of like $2K they hadn't already seized.

The fact that .gov and .mil accounts were paying users of the huge piracy den will lead to serious questions. The fact that the legacy gatekeepers screaming how he was killing them wanted to work with him, and were given extra tools not required by law will hurt the indictment. The way that facts were used in misleading ways to show "bad acts" but when you see the whole image you see a company trying very hard to comply with the requests.

Step 1 is to avoid extradition to the US, Step 2 will be to clear his name from a safe place half a world away.

Re:

No, sorry. All that has to be shown is that the charges in the US rise to a certain level, and that they are not entirely trumped up, and the extradition goes. He doesn't have to be found guilty of anything in NZ for it to happen.

"The fact that .gov and .mil accounts were paying users of the huge piracy den"

link please - and not Mr Dotcom's comments, he is not a reliable witness.

Re: Re:

The fact they mislead the grand jury raises doubts about the case meeting the levels required for NZ to extradite.

And what makes Mr. Dotcom unreliable to you?
And if you drag out the list of prior bad acts, for which he has already need judged and sentenced for, one would have to question your ability to be impartial on this matter.

I am sure the logs for Mega will verify the claims he is making. Afterall this is the same sort of "proof positive" they will be using for 5/6 strikes and are using in mass copyright shakedown lawsuits.

It does him no good to lie, it would damage his reputation and the view people have of him. He might be a flaming asshole, you might hate him, but innocent until convicted still applies.

The "facts" presented in this case were one sided and designed to make sure he was indicted. They told partial truths to help their case, and made things look nefarious that were not. They claimed he had hidden millions they were unable to find. They claimed he would jump into a helicopter and flee the country if released. They claimed he had a button that could make Mega vanish. Seems they like to make grand claims with no basis in fact.

And as much as you hate Kim Dotcom, you understand your supporting a BSA lawyer, and the **AA's who have a history of lying, cheating, and stealing on levels that make what Mega is accused of look like pocket change.

Re: Re: Re:

"I am sure the logs for Mega will verify the claims he is making. Afterall this is the same sort of "proof positive" they will be using for 5/6 strikes and are using in mass copyright shakedown lawsuits."

Here's the rub: If you are going to accept that to try to prove his innocence, then you have to accept it when it is used to prove other people's guilt. Since clearly nobody on Techdirt feels this is valid, then we have to assume that Kim's evidence is as fabricated as anything the **AAs do.

Pick one side of the argument and stick with it - just remember you have to apply the same standards in all cases!

"And as much as you hate Kim Dotcom, you understand your supporting a BSA lawyer, and the **AA's who have a history of lying, cheating, and stealing on levels that make what Mega is accused of look like pocket change."

You may not like the way they do business, but what percentage of their income is "illegal"? NONE.

Mega's income? 100%.

It's not hard to see the difference, unless you are trying hard not to.

Re: Re: Re: Re:

Here's the REAL rub: The records of USERS were stored and not seen by an outside observer. Many of them registered for accounts. That makes them different than the other claims. There are records of bits being sent to x ip address.

So pretty sue my argument holds. Being an endpoint in the communication means you can trap IP addresses, much like many of the copyright trolls working right now. They are running honeypots and are the source of the material being "infringed" because its worth so much more when extorting payments than actually offering the material.

Really? RIAA Canada was involved in the lawsuit over the pirated compilation CDs. Something silly like 60 billion if they were held to the same standard they intent to inflict on others. The BSA runs extortion pretending they have a right to audit your company, and need to collect money if your not legit... how much of that gets paid to the firms supposedly wronged by this?

Mega's income came from advertising and people paying for better access. Some people might have used the tool for wrong, but that isn't Mega's fault. Mega did EVERYTHING asked of them and then some to stay in compliance. 2 examples used in the indictment were of files Dotcom uploaded to test the system, never made public and never downloaded.

You seem to have decided that Dotcom got off to lightly in all of his previous problems and deserves some sort of extra smackdown this time. The problem is if we don't fiht for the guy you hate, the **AA's are going to screw the rest of us with this "win". You might want to look at the larger picture, sometimes you need to align with the "bad guy" against the "worse guy" because its right rather than turn a blind eye to how they are playing fast and loose with the law to win.

Literally 100% of all sites on the internet either have a search function or do not have a search function. It is flatly impossible to make a site that doesn't fall into one of those two categories. If either condition being true is sufficient evidence of criminal wrongdoing to result in a conviction, then the internet itself is a criminal conspiracy. Nothing more and nothing less.

Re:

court of public opinion.

here's the thing:

if he can prove the move to extradite him is politically motivated, there's a clause in NZ law that says he will NOT be extradited, regardless of the merits of the case, at which point the whole thing collapses.

now, NZ courts are Mostly pretty good, but it's been shown before that our government is not above dicking around with the law and leaning on people to get the outcome they want. all the more likely when they have outside forces leaning on them.

so he pretty much MUST make this case in public (and it has a LOT of publicity in NZ) so that public attention mitigates this. about the only thing that actually gets our government to grow a backbone when dealing with foreign powers is it's lack of backbone when it comes to pissed off voters.

basically, bizarre as it may seem, he's more likely to get a fair trial this way.

thing to remember is that NZ is small enough that the government Cannot just ignore it's citizens. it has to be Sneaky to get around us. now, it's pretty good at that, normally, but there's a number of things working against it at the moment:

1: the current government is horribly unpopular
2: there is a Strong nationalist sentiment floating around at the moment that is already pissed off with the government's deals with Chinese interests (and that's just the most recent and prominent example)
3: the general citizenry of NZ Do Not Like the US government. (perhaps more specifically, we do not like it meddling in our affairs, and are rather proud of being one of the few to actually stand up to it successfully on things here and there)

basically, by getting it out there in public he's making it VERY uncomfortable for the NZ government, which makes his entire situation much better. (seriously, the government here is getting utterly Shafted over this, at least in the circles i keep an eye on. the entire thing looks so corrupt and so obviously like pandering to foreign interests, which they're Already getting a lot of hate for... we've got a right-wing pro-US government at the moment. hilariously the party name is National. it's about the only party that's NOT got a significant nationalist vibe at this point (well, discounting it's essentially irrelevant coalition partners, and allowing that the labour party's nationalism is extremely hypocritical and adopted purely in a 'opposition should be opposite' manner.)

gist of it is, this is probably a good move.

('course, i could be wrong about any part of this, but it's what i've gathered from what i've seen and understood.)

This is a case where the jury needs to be educated, but in our justice system they will pick the most ignorant of the pool and put them on the as the jury.
The prosecution is certain to have the judge instruct the jury to only consider it's view of he law.
This is where jury nullification is required.

Press

"All that said, I still think that Kim Dotcom's decision to fight this in the press is a huge mistake. Even though he makes it out like he's fighting the MPAA -- and I'm sure they were absolutely behind much of this -- he's really fighting the US Attorneys, a part of the Justice Department, and they don't deal well with things like this. They can be incredibly vindictive and are focused solely on winning the case, not on what the public thinks. They'll use everything Dotcom says publicly and turn it against him."

I am not entirely sure Kim Dotcom has said anything damning to his defense at all....by releasing the user information of those pursuing him in a lawsuit, he is making the information public and therefore not legalese for people to be fooled. There is an old saying in the United States......Sinners flee from nothing and when there is nothing to fall from.....in other words, Kim Dotcom has nothing to hide and is keeping calm and confident as he tells the press he is innocent...look at his body language when he explains the evidence...not breaking a sweat, doesn't fidget with his lips, keeps a cool confident smile on his face....he has no reason to hide in his defense and is bouncing back to defend himself as the MPAA is running around like chickens with their heads cut off, barking at every move he makes will make things worse for the MPAA which hope will be the end result.